Opinion
Hearing Granted May 31, 1961.
Opinion vacated 17 Cal.Rptr. 495, 366 P.2d 823.
Russell E. Parsons, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., George W. Kell, Deputy Atty. Gen., for respondent.
FOX, Presiding Justice.
Defendant was charged with the possession of a narcotic (heroin) on April 21, 1960. He was convicted and sentenced to the state prison. He has appealed from the judgment and order denying his motion for a new trial.
Officer Walsh, of the Los Angeles Police Department, Narcotic Division, was the arresting officer. He had in formation from a confidential source, which he refused to disclose, that defendant had been dealing in narcotics for approximately two years. This particular testimony, however, was later stricken. Officer Walsh had observed the defendant in an area in Los Angeles known to have some frequency of narcotic activity and which was a 'known hangout' for narcotic users and peddlers.
On April 15th, Officer Walsh, with two fellow officers, was parked across the street from a drug store located at 6th and Alvarado Streets in Los Angeles. He observed the defendant drive up with two persons in his car who were unknown to the officers. These two individuals went into the drug store; in a few minutes they returned to the car. Because of traffic conditions, the officers were unable to follow the automobile driven by defendant when it left the drug store. The officers thereupon went into the drug store and talked to the druggist, who told them that the two persons had purchased milk sugar and gelatin capsules. Defendant lived in an apartment at 1320 Burlington. At approximately 9:00 p. m. on April 21st, Officer Walsh and his partners staked out that location. During the course of their surveillance they observed a known user come out of the apartment. They did not approach this person or have any conversation with him. The officers then went to the second floor to the defendant's apartment, the location of which they knew prior to entering the building. They remained on the outside for approximately 15 to 20 minutes. At the expiration of this period the door was opened by defendant's wife, the officers identified themselves as police officers, and 'then went into the apartment.' They did not ask permission to enter. Defendant was standing approximately four feet from his wife when she opened the door. After entering, Officer Walsh 'noticed a woman running toward the bathroom.' He 'chased her into the bathroom' and as he reached the bathroom he observed 'white powder on the edge of the bathtub.' Also, 'there were some cups containing a white powder on the edge of the bathtub' and 'a green plate containing powder and Defendant testified that the officers entered his apartment by hitting the door and forcing it open; that the lock was loosened up by the force of this entry but was not broken; that the officers made a search of his apartment and found some narcotics. Janet Venable testified that she was the manager of the apartment house; that an officer came to her apartment on the first floor and inquired as to which apartment defendant occupied. She told the officer that it was the one immediately above hers. A few minutes after the officer had talked to her, she heard a noise like a thud immediately above her apartment. Approximately ten minutes later, one of the officers returned to her apartment to acquaint her with what they had found and requested her to inspect it. When the officer first came to her apartment inquiring about the location of defendant's apartment, he asked her for a key. She informed him that her key did not fit that apartment. She also testified that she asked the officers upon that occasion whether they had a search warrant to search the apartment. She was advised by the officers that 'they didn't require one.'
Defendant objected to the introduction of the contraband and the hypodermic outfit on the ground that probable cause for the search was not established; that the search was illegal, and that therefore the evidence recovered was not admissible. The objection was overruled and the evidence was received.
Implicit in the judge's decision admitting the evidence is the proposition that he did not give full credence to the testimony of either the defendant or the manager of the apartment house. It is the trial court's function to pass on the credibility of the witnesses and determine the weight that should be given to their testimony. In so doing, the judge is entitled to take into account the bias, prejudice, or interest in the outcome of the case, if any, of the witness, and the demeanor of the witness on the stand. Huth v. Katz, 30 Cal.2d 605, 609, 184 P.2d 521. Here the defendant was obviously vitally interested in being acquitted and the judge may well have concluded that the manager of the apartment house was interested in protecting a tenant. Thus it cannot be said that the court acted arbitrarily in disbelieving portions of the testimony of these witnesses even though it was not directly contradicted. Hicks v. Reis, 21 Cal.2d 654, 659-660, 134 P.2d 788.
Defendant contends that (1) his presence at some prior, unspecified time in an area which addicts and pushers frequent, (2) the purchase at the drug store of milk sugar and gelatin capsules by the men in his car, and (3) the fact that a known but unidentified user left his apartment only a few minutes before the officers arrived, do not establish reasonable cause for the officers to search his apartment, absent a search warrant and without his consent. Therefore the contraband the officers discovered was not admissible in evidence.
Giving full significance to defendant's argument on the question of reasonable cause, it does not, however, justify his conclusion that the contraband was not properly received in evidence. The information the officers had, particularly when they observed a known user leave defendant's apartment, was sufficient to create a suspicion that he was in some way related to narcotics--a suspicion that justified further But, argues the defendant, the officers entered the apartment before the woman committed the furtive act of running to the bathroom. Hence the entry was illegal and so was the search. But this does not necessarily follow. Since defendant was in plain view only a few feet from the door, the officers could have questioned him without crossing the threshold or committing a trespass, but such questioning might have been overheard by other tenants or other persons passing by. This would have been unfair and embarrassing to defendant. The police, of course, were aware of this. It was therefore not unreasonable that they should step inside before starting the interrogation. The trespass here falls in the same category as the trespass in People v. Boyles, 45 Cal.2d 652, 290 P.2d 535. In discussing a somewhat analogous situation there, the court stated, 45 Cal.2d at page 654, 290 P.2d at page 537: 'Under these circumstances, the trespass, if any, was entirely unrelated and collateral to the securing of the evidence to which defendant objects, and it could not therefore render that evidence inadmissible.' (Citations.) See also People v. Martin, 45 Cal.2d 755, 763, 290 P.2d 855. People v. Maddox, 46 Cal.2d 301, 305, 294 P.2d 6.
Defendant's other point is that the officers violated the provisions of section 841 of the Penal Code, which provides: 'The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense * * *.' (Emphasis added.) Since the defendant was not arrested until the heroin had been found, the officers who had previously identified themselves were not required to inform him of their intention to arrest him and the cause of the arrest for they had every reason to believe that he was actually engaged in the commission of a public offense. The above italicized portion of section 841, Penal Code, clearly covers the situation here.
The judgment and order are affirmed.
ASHBURN, J., and McMURRAY, J. pro tem., concur.